[HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2057 OF 2006 Dated 25-6-2014 Between:
Gandham Naga Satyam.
..Petitioner.
And:
The State of Andhra Pradesh, represented by Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.
…Respondent.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2057 OF 2006 ORDER:
This revision is against judgment dated 6-12- 2006 in Criminal Appeal No.11 of 2005 on the file of II Additional District and Sessions Judge, East Godavari at Amalapuram whereunder judgment dated 7-1-2005 in C.C.No.141 of 2002 on the file of Additional Judicial First Class Magistrate, Amalapuram is confirmed.
Brief facts leading to this revision are as follows: Sub-Inspector of Police Amalapuram Taluk Police Station filed charge sheet against the revision petitioner alleging that on 26-12-2001 and 29-12-2001, some unknown offenders gained entry into Makam shed of P.W.1 and committed theft of two tyres with dishes of Krishi tractor. Basing on the report given by P.W.1, crime No.97 of 2001 was registered. On 14-3- 2002 at 10 A.M., Hero cycle belonging to P.W.3 was kept in the post office at Janupalli village and on a report from him crime No.15 of 2002 was registered. On 13-3-2002 hero cycle belonging to P.W.5 is stolen when it was kept by the side of his house at his house at Bandarulanka and on his report, crime No.16 of 2002 was registered. During investigation on 16-3- 2002 at about 9 A.M., P.W.8 arrested the accused while he was in possession of one of the stolen cycles and on his confession, the other properties were recovered and thus, he committed offence under Section 379 or 411 I.P.C. On these allegations, trial court examined eight witnesses and marked twelve documents besides five Material Objects. On an overall consideration of oral and documentary evidence, accused was found guilty for the offence under Section 411 I.P.C. and he is sentenced to undergo one year imprisonment for the offence under Section 411 I.P.C. and aggrieved by the same, he preferred appeal to the court of Sessions, East Godvari District and II Additional District and Sessions Judge, East Godavari at Amalapuram confirmed the conviction and sentence. Now aggrieved by the same, present revision is preferred.
Heard both sides.
Advocate for petitioner submitted that judgments of the courts below suffers from gross misappreciation of facts and evidence. He further submitted that there are discrepancies in the evidence of P.Ws.3 and 5 with regard to stolen property and those discrepancies were not taken into consideration by both trial court and appellate court. He further submitted that according to P.W.3, his cycle was of black colour but the cycle produced before the court i.e., M.O.4 is in green colour. He further submitted that both the courts failed to consider that the Investigating Officer has not conducted any identification parade for the property and therefore, evidence of P.Ws.3 and 5 which is with discrepancies cannot be accepted. He further submitted that if for any reason, his argument is not accepted for acquitting the accused, at least sentence may be reduced by treating the period already undergone in the jail since the petitioner is young at age and got wife and children and that he is not a habitual offender.
On the other hand, learned Public Prosecutor submitted that both the courts have rightly appreciated the evidence on record and that there are no grounds to interfere with the concurrent findings of the courts below.
Now the point that would arise for my consideration in this revision is whether the judgments of the courts below are legal, correct and proper?
POINT:
According to prosecution, accused was found in possession of stolen property of two cycles and also two tyres and he was charge sheeted in respect of three crimes i.e., Cr.No.97 of 2001, 15 of 2002 and 16 of 2002, the court after trial found him not guilty in respect of Cr.No.97 of 2001 relating to M.Os.1 to 3 but found him guilty in respect of other two crimes relating to M.Os.4 and 5.
Now the main contention of the advocate for revision petitioner is that there are discrepancies in the evidence of P.Ws.3 and 5 with regard to the descriptive particulars of the cycles belonging to them and those discrepancies were brought on record during cross-examination but both the trial court and appellate court have failed to consider them.
I have perused the evidence of P.Ws.3 and 5 and also judgments of the trial court and appellate court.
No doubt, with regard to M.O.4 cycle, there is small discrepancy with regard to colour. According to the report, P.W.3 lost his hero cycle with black colour whereas M.O.4 is in green colour. But the appellate court while answering this discrepancy held that since number on the cycle is tallied, the discrepancy with regard to colour cannot be taken into consideration and on that ground, the objection raised on behalf of the accused was overruled.
On a consideration of the evidence, I feel that the appellate court has rightly answered the objection raised on behalf of the accused with regard to the discrepancy. Further, as seen from the evidence of P.Ws.3 and 5, there is not even a suggestion to these witnesses disputing recovery of cycles from the possession of revision petitioner. According to the suggestions put to these two witnesses, they have obliged police and deposed against him. But that suggestion is not substantiated with any material and the contention of the accused was discarded. Further, the mediators for the arrest of accused and seizure of stolen property have clearly identified and their evidence is supported and corroborated with the evidence of P.Ws.3 and 5. Both trial court and appellate court have rightly considered the evidence of all the prosecution witnesses and answered all the objections raised on behalf of the accused.
Now the very self same objections are raised here and as there is no material to substantiate the objection, I am of the view that both trial court and appellate court have rightly convicted the accused and that there are no grounds to interfere with the conviction.
Now coming to sentence part, advocate for petitioner submitted that petitioner is not a habitual offender and he is young at age and got wife and children and aged parents to look after and he is only bread winner. He further submitted that the petitioner is not involved in any other criminal cases, therefore, considering this aspect, the period already undergone may be treated as punishment. He submitted that petitioner is in jail for more than one month and the property involved in the cases are only cycles and considering this also, the sentence may be reduced to the period already undergone.
On a scrutiny of the material and the evidence of the prosecution witnesses, I feel that the request of the advocate for petitioner can be considered in view of the age and family status of the petitioner. Admittedly, petitioner is not a habitual offender and he is not involved in any other criminal cases. The property involved in this case is two cycles and the petitioner was already in jail for more than one month and further, the offence is of the year 2002 and already 12 years elapsed and the petitioner must have suffered mental agony on account of this case.
Considering these aspects, the period already undergone is treated as punishment for the offence under Section 411 IPC as there is no minimum sentence prescribed.
For these reasons, this Criminal Revision Case is dismissed confirming the conviction recorded against the petitioner but the sentence of one year imprisonment for the offence under Section 411 I.P.C. is reduced to the period already undergone.
As a sequel to the disposal of this revision, the Miscellaneous Petitions, if any, pending, shall stand dismissed.
JUSTICE S.RAVI KUMAR Dated 25-6-2014.
Dvs.
HONOURABLE SRI JUSTICE S.RAVI KUMAR CRIMINAL REVISION CASE No.2057 OF 2006 Dated 25-6-2014 Dvs